Some years ago, a reporter from the Toronto Star filed an access to information request to obtain the names of the top 100 physician billers to Ontario’s Health Insurance Program (OHIP). She also sought the amounts billed, and the physicians’ fields of specialization. The information was in the hands of the Ministry of Health and Long-Term Care, and the request was made under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA). The Ministry refused to disclose the records on the basis that they constituted the physicians’ personal information. An adjudicator with the Ontario Information and Privacy Commissioner’s Office disagreed, and ordered disclosure. An appeal by the Ontario Medical Association (OMA) to the Ontario Divisional Court was unsuccessful (discussed here). On August 3, 2018, the Ontario Court of Appeal dismissed the OMA’s further appeal of that decision.

The relatively brief and unanimous Court of Appeal decision made short work of the OMA’s arguments. The Court found that the adjudicator’s determination that the information was not personal information was reasonable. FIPPA specifically excludes from the definition of personal information “the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity”. The OMA had argued that the disclosure of the names in conjunction with the billing information meant that the disclosure would include personal information that “describes an individual’s finances, income, assets, liabilities…”. FIPPA provides in s. 21(3) that the disclosure of personal information is presumptively an invasion of privacy when it falls within this category. However, the Court found that the billing information constituted “the affected physicians’ gross revenue before allowable business expenses such as office, personnel, lab equipment, facility and hospital expenses.” (at para 25) The Court agreed with the adjudicator that the gross billing information did not reveal the actual income of the physicians. It stated:“where, as here, an individual’s gross professional or business income is not a reliable indicator of the individual’s actual personal finances or income, it is reasonable to conclude not only that the billing information is not personal information as per s. 2(1), but also that it does not describe “an individual’s finances [or] income”, for the purpose of s. 21(3)(f).” (at para 26)

The OMA had resisted disclosure because the billing information might give the public, who might not understand the costs associated with running a medical practice, a distorted idea of the physicians’ personal finances. Ironically, the Court found that the differences between billing information and actual income were so different that it did not amount to personal information. The OMA had objected to what it considered to be the OIPC’s changed position on the nature of this type of information; in the past, the OIPC had accepted that this information was personal information and had not ordered disclosure. The Ontario Court of Appeal observed that the adjudicator was not bound to follow precedent; it also observed that there were differences of opinion in past OIPC decisions on this issue, and no clear precedent existed in any event.

The decision is an important one for access to information. A publicly funded health care system consumes substantial resources, and there is a public interest in understanding, analyzing, critiquing and discussing how those resources are spent. The OMA was understandably concerned that public discussions not centre on particular individuals. However, governments have been moving towards greater transparency when it comes to monies paid to specific individuals and businesses, whether they are contractors or even public servants. As the Court of Appeal noted, FIPPA balances access to information with the protection of personal privacy. The public interest clearly prevailed in this instance.